ASIL Insights

Armed Activities on the Territory of the Congo:
The International Court of Justice Orders the Parties to Refrain from Armed Action and to Ensure Respect for Human Rights
By Leopoldo Lovelace, Jr 
July 2000

On July 1, 2000, in Armed Activities on the Territory of the Congo, a case brought before the International Court of Justice (I.C.J.) by the Democratic Republic of the Congo (D.R.C.) against the Republic of Uganda and other states in June 1999, the Court, having regard to Article 41 and 48 of its Statute, and to Articles 73, 74 and 75 of its Rules, unanimously issued an Order granting provisional measures of protection at the request of the D.R.C. Article 41 of its Statute empowers the Court to issue such orders before the Court reaches other procedural or substantive issues in a proceeding, when the Court deems it appropriate "to preserve the respective rights of either party."  

In its Order of July 11, 2000, the Court indicated that, pending a decision on the merits both the D.R.C. and Uganda must "prevent and refrain from any action, and in particular any armed action, which might prejudice the rights of the other Party in respect of whatever judgment the Court may render in the case, or which may aggravate or extend the dispute before the Court or make it more difficult to resolve", and that both "must take all measures necessary to comply with all their obligations under international law, in particular those under the United Nations Charter and the Charter of African Unity, and with U. N. Security Council Resolution 1304 (2000)." The Court thus accepted generally the D.R.C. Government's request for the urgent indication of provisional measures of protection, and rejected the Republic of Uganda's contention that the request was inadmissible and moot. It also affirmed its own authority to act, independent from and concurrently with the Security Council if that is the case, in the exercise of its judicial functions under the Charter.   

This is one of the three cases before the I.C.J. arising from the institution of proceedings by the D.R.C. against Burundi, Rwanda, and Uganda for "acts of armed aggression committed ... in flagrant breach of the United Nations Charter and of the Charter of the Organization of African Unity." According to the terms of the D.R.C.'s Application, such armed aggression on its territory "involved inter alia violation of the sovereignty and territorial integrity of the Democratic Republic of the Congo, violations of international humanitarian law and massive human rights violations." In its request for the indication of provisional measures, the Government of the Congo had made specific reference to the fighting between the armed forces of Uganda "and another foreign army" [Rwanda], which was causing "considerable damage to the [Congo] and to its population." Independent media reports had confirmed these events, located in and around the eastern Congolese city of Kisangani.   

Three days before the Government of the Congo's request for the urgent indication of provisional measures, on June 16 2000, the U. N. Security Council had adopted Resolution 1304, in which it called on "all parties to cease hostilities throughout the territory of the Democratic Republic of the Congo" and demanded "that Ugandan and Rwandan forces as well as forces of the Congolese armed opposition and other armed groups immediately and completely withdraw from Kisangani," that Uganda and Rwanda, "which have violated the sovereignty and territorial integrity of the Democratic Republic of the Congo, withdraw all their forces from the territory of the Democratic Republic of the Congo without further delay," and that "all other foreign military presence and activity, direct and indirect, in the territory of the Democratic Republic of the Congo be brought to an end."   

In the course of the public hearings, held on June 26 and 28 at the Peace Palace, relating to its request for the indication of provisional measures, the Government of the D.R.C. (Michael Lion, Agent) had stated that the resumption of the armed conflict in and around the area of Kisangani between Rwanda and Uganda was causing "substantial damage" to the country and its people, constituted further evidence "of the military and paramilitary intervention and occupation, commenced by the Republic of Uganda in August 1998," and reflected "the conflicts between the foreign forces engaged in organized looting of the natural resources and the assets and equipment of the Democratic Republic of the Congo." It accordingly requested the Court to indicate as a matter of urgency that Uganda cease all fighting and military activity in, and immediately and completely withdrew its forces from the territory of the Congo, that it desist "from committing or inciting the commission of war crimes or any other oppressive or unlawful act against all persons on the territory of the Congo," and from the illegal exploitation and transfer of its natural resources. The Government of the D.R.C. also made explicit in its request that it was not asking the Court now to condemn Uganda or to declare that it had violated international law: the withdrawal of troops or the support for irregulars were demanded "simply as measures preventing the rights of the Democratic Republic of the Congo."   

Uganda's response to the Congo's claims and request in the public hearings pursued two lines of argumentation. First, it stated that after the army of the former government of the Congo under President Mobutu "abandoned Eastern Congo, leaving no central governmental presence or authority," Ugandan forces, with no territorial interests in the Congo, had been deployed in the region "in collaboration with the forces [of the new President of Congo, Mr. Laurent Kabila] to arrest the activities of the anti-Uganda rebels"; that this arrangement had been formalized with President Kabila "by written agreement dated 27 April 1998"; and that at the time the D.R.C. had filed its Application with the Court in June 1999 there was already in place an agreement to establish "a framework for peace in the region" [the Lusaka Agreement].   

Second, Uganda contended that, in any event, the request of the Congo was inadmissible "as a matter of law", since it was precluded from exercising its powers under Article 41 of its Statute, given the existence of U. N. Security Council Resolution 1304 (2000), of June 16. According to Uganda's reasoning, the applicable procedural principles in this situation were those invoked by the Court in its Order of 14 April 1992, on Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v. United Kingdom/United States of America). In this latter case, the Court decided, by eleven votes to five, that it would not indicate provisional measures, as requested by the Government of Libya on the basis of rights protected by the 1971 Montreal Convention, because Libya's obligations under U. N. Security Council Resolution 748 (1992), in accordance with Articles 25 and 103 of the U. N. Charter, "prevailed over its obligations under any other international agreement, including the Montreal Convention." The Court in that case found that the measures requested by Libya would have been likely to impair the rights of the U.K. and U.S. under Resolution 748 to impose certain sanctions on Libya.

The Court rejected Uganda's argument. The Court determined that the Security Council Resolution 1304 (2000) did not prevent the Court from acting in accordance with its Statute and its Rules for two reasons. One, whereas the provisions of Article 12(1) of the Charter do not generally allow the General Assembly to act on any dispute or situation while the Security Council is exercising its functions upon the same, "there is no similar provision anywhere in the Charter with respect to the Security Council and the Court": the "Council has functions of a political nature assigned to it, whereas the Court exercises purely judicial functions," and "[b]oth can therefore perform their separate but complementary functions with respect to the same events." And two, the Security Council had taken no decision in this case "which would prima facie preclude the rights claimed by the Congo from being 'regarded as appropriate for protection by the indication of provisional measures'."   

In the Aegean Sea Continental Shelf Case (Greece v. Turkey), which was before the Court in 1976, the Court declined to issue provisional measures of protection that would have reinforced a resolution the Security Council had already adopted on the dispute between the parties over continental shelf rights in the Aegean. It found provisional measures unnecessary in that case because it would not presume that the parties would fail to heed the recommendations of the Security Council addressed to them with respect to the dispute. A possible explanation for the Court's willingness to order provisional measures in the current case between the D.R.C. and Uganda, but not in the Aegean Sea Case, might be that the Court feels confident of its jurisdiction to hear the merits in the current case whereas there was a substantial question about its jurisdiction in the earlier one. Any request for provisional measures will ordinarily be made before the Court can definitively decide on its own jurisdiction, but it nevertheless makes a determination of prima facie jurisdiction before it will order provisional measures. Ultimately, the Court held that it lacked jurisdiction in the Aegean Sea Case.  

The Court in the current case also found that the Lusaka Agreement is an international act binding upon its parties which does not preclude the Court "from acting in accordance with its Statute and [its] Rules." Finally, the Court reasoned, the fact that a State, which has brought before the Court a number of similar cases, seeks the indication of provisional measures in one of them only, does not affect the authority of the Court to decide in any event on such a request, as under Article 75(1) of its Rules "the Court may in any event decide to examine proprio motu whether the circumstance of the case require the indication of provisional measures." 

For the text of the Order, see
<http://www.icj-cij.org/icjwww/idocket/ico/ico_orders/iCO_iOrder_20000701.htm>. 
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About the author:
Leopoldo Lovelace, Jr is a visiting Research Scholar, Mershon Center for Education in International Security & Public Policy, and Lecturing Professor of International Law, International Studies Program, The Ohio State University, Columbus, Ohio, USA.
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ASIL Insights are intended to identify international law issues in order to provide a basis for informed discussion of current events. They are not intended to be definitive, and they do not necessarily reflect the views of all members of The American Society of International Law. The Society itself takes no position on these issues.